OSHA Uses General Duty Clause to Prosecute Chemical Exposure instead of PEL
OSHA used its powers under the General Duty Clause to prosecute a furniture manufacturer, Fiberdome Inc, for exposing workers to excessive concentrations of styrene, even though there is an OSHA PEL for this compound.
OSHA, the Occupational Safety and Health Administration, typically prosecutes employers who do not adequately protect their employees from chemical exposure by citing the OSHA Permissible Exposure Limit (PELs). While there are a large number of PELs, not every chemical is covered. Typically, when prosecuting employers for over exposing their employees to chemicals, where there is a PEL, OSHA relies on it, and for compounds where there is no PEL then OSHA falls back on the General Duty clause. The General Duty clause (sec. 5) of the Occupational Safety and Health Act of 1970, reads as follows:
Each Employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) …
In order for OSHA to succeed in prosecuting for a chemical exposure under this clause, OSHA must show that the employees were exposed to high concentrations of the chemical, that the concentrations were above industry accepted standards and that the employees suffered ill effects.
In this case, OSHA was able to show that employees at Fiberdome were exposed to high concentrations of styrene vapor and that it was above an industry standard of 50 ppm. The result was that Fiberdome agreed to pay a $2000 penalty.
The OSHA press release stated “Under the terms of the agreement, Fiberdome will abate the general duty citation by following the styrene industry’s 1996 agreement to voluntarily adopt an employee exposure limit of 50 ppm over an 8-hour time weighted average. Fiberdome further agreed that if it cannot achieve compliance with a voluntary exposure limit through engineering and/or administrative controls, it will implement an effective respiratory protection program, including the use of appropriate respirators.”
This case is especially unusual in that OSHA has a PEL for styrene of 100 ppm and a ceiling of 200 ppm. As this blog has discussed on many occasions, many of the OSHA PELs are over forty years old and out of date compared to current scientific based exposure limits. This case is unusual in that OSHA prosecuted Fiberdome under the General Duty clause rather than its own PEL. OSHA has been intending to reevaluate its PELs for several years but so far has been unable to muster the resources needed. In the mean time, OSHA has initiated several workarounds, such as emphasizing other standards such as ACGIH in its Annotated PELs. It remains to be seen if OSHA will prosecute more employers under the General Duty clause using industry standards as another way to work-around its own outdated PELs.